Trademarks: Famous is as famous does

My latest paper offers a simple idea to get trademark owners to stop suing parodists, satirists, and other expressive users: make evidence of such independent referential uses of a mark a condition for proving the mark famous.https://t.co/coHQ8X7oOO— Mark Lemley (@marklemley) September 5, 2018

@TimberlakeLaw

The sneaky genius of such an approach is that:

1) Perhaps a statistically insignificant number of marks are actually famous, but

One comment

What a lovely prank! Unfortunately I think an aggressive trademark owner would just as well make their dilution claims in case #40 (involving claims based on dilution, requiring a showing of fame) by displaying the trophies from cases #1-39 involving parodists.

Isn’t the recently* deceased body of a parody equally good evidence of referential use as a live parody in the wild?

* OK, OK — if case #40 is filed 30 years after the last parody was shut down, maybe the mark isn’t famous anymore.

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The Title, the Blog and the Blogger

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, brands, free speech (mostly as it relates to the Internet) and legal issues related to blogging. That may sound like a lot, but it's just a blog.

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